- 1 - NC:
2024. KHC:26312 ® WP No.22403 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE9H DAY OF JULY, 2024 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION No.22403 OF2022(GM-CPC) BETWEEN: SMT. GIRIJA POOJARTHI, D/O. KORATHI POOJARTHI, AGED ABOUT52YEARS, R/AT. KOTATHATTU VILLAGE, POST: KOTA – 576 221, UDUPI TALUK, UDUPI DISTRICT. …PETITIONER (BY SRI. CHANDRANATH ARIGA K., ADVOCATE) AND: SMT. KOTA SRILAKSHMI URALA, W/O. LATE DR. SEETHARAMA URALA, AGED ABOUT61YEARS, KOTATHATTU VILLAGE – 576 221, UDUPI TALUK, UDUPI DISTRICT, NOW AT BANGALORE, REP. BY HER GPA HOLDER, MR. A. RAGHURAMA HEBBAR, 436, 9TH CROSS, 4TH MAIN, HIG COLONY, RMV2D STAGE, BANGALORE – 560 094. …RESPONDENT (BY SRI. S. SANTHOSH NARAYAN, ADVOCATE) THIS WP IS FILED UNDER ARTICLE227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
- 2 - NC:
2024. KHC:26312 WP No.22403 of 2022 DTD1510.2022 PASSED IN EX.CASE.NO.06/2008 ON I.A.NO.28 PASSED BY THE PRINCIPAL CIVIL JUDGE JUNIOR DIVISION, KUNDAPURA, ANNEXURE-J AND ETC. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Aggrieved by the order passed in I.A.No.28 in Ex.P.No.06/2008 dated 15.10.2022 by the Principal Civil Judge (Junior Division), Kundapura, defendant No.7 in the suit is before this Court.
2. Before considering the impugned order the factual matrix of the case are that the suit is filed for recovery of possession that is O.S.No.374/1999 and that came to be decreed on 24.07.2007. Then, in the year 2008, the decree holder has initiated the execution proceedings. The Executing Court had issued the delivery warrant on 05.11.2016. Basing on the earlier order dated 08.07.2016, when the bailiff has filed a report on 09.08.2016 stating that the property cannot be identified, I.A.No.14 is filed by the decree holder seeking for assistance of the surveyor to identify the suit schedule property. In that the Court below had passed an order that as could be seen from the materials placed before the Court shows - 3 - NC:
2024. KHC:26312 WP No.22403 of 2022 that the Court observed that JDr.No.7 is fighting tooth and nail on the very same issue which is already decided by the predecessor in office. Even before the Court the very same point is argued. As such to set the point in rest some points are to be clarified which are highlighted by JDr.No.7. The objection filed by JDr.No.4 which is on the similar lines as that of JDr.No.7 was rejected on 28.03.2015. Then, the learned counsel for JDr.No.4 had filed Vakalath along with the counsel for JDr.No.7. As they have not questioned the order passed in favour of JDr.Nos.4(a) to (c). Now, they are trying it in another way of getting their counsel to file Vakalath for JDr.No.7 and trying to agitate their defence through JDr.No.7. The defence of the parties is one and the same. The Trial Court had observed that JDr.No.7 had adopted the written statement filed by defendant No.4 in the original suit. JDr.No.7 in spite of giving an opportunity before the Court, has not availed the opportunity and the Court below had observed that having not done the same before the Trial Court in the present Execution Petition JDr.No.7 cannot harp upon the decree passed by the Court stating that the opportunity was not afforded to them by the Court in the original suit. The only remedy that was - 4 - NC:
2024. KHC:26312 WP No.22403 of 2022 available to JDr.No.7 is to prefer an appeal before the Appellate Court and to challenge the judgment and decree passed by the Court, but the same is not done by him. As such JDr.No.7 is also debarred from raising ferriferous objections when the decree of the Court is being executed by due process of law.
3. The Court had also observed that the bone of contention of JDr.No.7 is that the B schedule shown in the decree is not identifiable and as such the decree is not executable. It is the contention that the DHr in the present execution proceedings cannot take the assistance of the Court or the court amin to identify the B schedule property. It is his contention that the surveyor cannot be appointed to identify the property in the E.P. proceedings. It is also his contention that the building or the superstructure in the property in possession of JDr.No.7 cannot be demolished by use of any machines as the property is not identifiable. The DHr trying to take forcible possession of the property which is not the subject matter of the decree. Then, the Court had considered what is the B schedule property and it is observed by the Trial Court that the Court amin has to identify the 30 cents of land within - 5 - NC:
2024. KHC:26312 WP No.22403 of 2022 the boundary shown in the B schedule. Learned counsel for JDr.No.7 argued that the surveyor’s plan referred in I.A.No.XIV is not produced before the Court for scrutiny nor the JDr, is aware of the said survey plan. Then, the Trial Court had considered that aspect basing on the judgment dated 24.07.2007 in O.S.No.374/1999 and also upon an order passed in TRI.No.3075/79-80 and TRI.No.3061/79-80 and the order passed in TRI.No.3065/78-79. The Trial Court had observed that when the judgment is read in between the lines it makes it abundantly clear that the DHr is referring to the plan/sketch prepared in TRI.No.3065/78-79. JDr.No.7 was also a party to the said judgment now, it cannot be contended that he is not aware of the said plan or sketch. The report of the Court amin goes to show that he requires the assistance of the Taluk Surveyor to identify the same. The said requirement is bonafide one as the Court amin may not be well versed in identifying the property or with the measurements. The very conduct of JDr.No.7 taking frivolous contention in the E.P., goes to show that there is some serious obstruction for executing the decree and accordingly, the Trial Court had allowed I.A.Nos.14 to 16 and the Tahsildar is directed to give assistance of Surveyor to - 6 - NC:
2024. KHC:26312 WP No.22403 of 2022 the Court amin to identify the B schedule property within the boundaries shown in the Execution petition as per the plan/sketch in the Land Tribunal case TRI.3065/78-79. Further, the Court amin is directed to execute the decree by getting buildings or superstructures put up by the JDr’s. demolished which is in existence in the B schedule land with the help of the mechanical devices and the cost of engaging the same is liable to be borne by the DHr and the Court amin is directed to hand over the vacant possession of the B schedule property to the DHr. The said order was passed on 08.07.2016. Then, I.A.No.18 is filed by the JDr to recall the order dated 08.07.2016 whereby the Court below had dismissed the said application. In the order impugned the Court below had observed that learned counsel for the applicants has argued that the B schedule property is not identifiable. The surveyor who had assist the Court bailiff has not properly identified the B Schedule property as per the sketch prepared in TRI.3065/78-79 filed before the Land Reforms Tribunal. There is no verdict on the plaintiff report. Then, considering the said contention, the Trial Court had dismissed the I.As and observed that earlier, the Court below had passed a detailed order. After - 7 - NC:
2024. KHC:26312 WP No.22403 of 2022 passing the orders on I.A.Nos.22 and 23, on the very next date of hearing this application is filed to recall the said order without any proper reason. Once the Trial Court had passed the order on interim application, there is no right to reconsider the impugned order. It is well settled that the executing Court cannot go beyond the decree. Already B schedule property has been demarketed by the surveyor. Further, Police aid has also been granted to execute the delivery warrant. The MESCOM is directed to disconnect the electricity supply. The Court bailiff has to comply the Court order without seeking unnecessary explanation. The Court observed that this application is not by a third party, but it is filed by a party to the suit. It also reveals that several applications are filed on various grounds and JDr is playing delay tactics. So far on the verdict on the bailiff report is concerned while passing order on I.A.Nos.22 and 23 has considered bailiff report and finally passed detailed order and the Court below felt that there is no ground to recall the order dated 01.02.2019 and accordingly dismissed the application.
4. Aggrieved thereby DHr.No.7 is before this Court, it is the case of defendant No.7, who is the petitioner before this - 8 - NC:
2024. KHC:26312 WP No.22403 of 2022 Court, is that by proceedings of the Land Reforms Tribunal an extent of 30 cents of land was allotted to the defendant and other, ever since, he has been in the possession of the property. It is also the admitted fact that he entered appearance in the suit, he has adopted the written statement of DHr.No.4 and later he failed to contest the suit and a judgment and decree was passed. Thereafter, he has come into the picture in the execution proceedings. One of the ground that is also raised is that no opportunity is given to him while passing the judgment and decree. Initially, defendant No.4 that is JDr.No.4 has raised the objections with regard to the executability and identification of the properties. That came to be dismissed by order dated 28.03.2015. Thereafter, the other applications came to be filed by JDr.No.7. There is no dispute about the fact that by proceedings in TRI.3065/78-79 where a sketch is also appended to that 30 cents of land is allotted to defendant No.7 and others. It is the case of the plaintiff that he is having another 30 cents of land which is the suit schedule property.-. 9 - NC:
2024. KHC:26312 WP No.22403 of 2022 5. Learned counsel for the petitioner has drawn the attention of the Court to the judgment and decree. B schedule property is in Survey Number and SD.184-1 dry land extent of 30 cents. Then, when it comes to the boundaries, East- Portion of this SD, South- Portion of this SD, West- Survey No.184/2, North- Portion of this SD. In the A Schedule, it is mentioned as extent of 4.35 cents excluding 30 cents in Survey No.184/1 granted by the Land Reforms Tribunal to defendant Nos.1 and 2 and in Bacchi in TRI.No.3065/78-79. Learned counsel basing on this submits that the decree is not executable as the property that is shown in the decree and what they are going to execute, the sketch that is prepared by the Surveyor is not one and the same and as such it cannot be executed. It is submitted that all these people who are in possession of their respective lands are by virtue of the orders passed by the Land Reforms Tribunal where 30 cents of land is granted to several persons and they have raised their huts/structures in the said land. They are living in the respective lands allotted to them. Now, by virtue of this execution, the DHr is going to demolish the huts which are in the possession of defendant No.7 and others which is not permissible and it is submitted that when the decree shows a - 10 - NC:
2024. KHC:26312 WP No.22403 of 2022 particular boundary, as per the Surveyor’s report, the execution has to be as per the boundaries mentioned therein. Learned counsel submits that the executing Court cannot go beyond the decree and infact, now, looking at the survey report and what is going to be executed, it clearly shows that the executing Court is going beyond the decree and unconnected with the property that is mentioned in the decree unconnected with the boundaries, they are going to execute. They have objected the same and when the recall application is filed, the Court without any basis had dismissed the recall application. He had relied on the judgment of the Hon’ble Apex Court in the case of Bhawan Vaja and others Vs. Solanki Hanuji Kodaji Mansing and another1 “It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the 1 1973 (2) SCC40- 11 - NC:
2024. KHC:26312 WP No.22403 of 2022 execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing Court and the appellate court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them.” - 12 - NC:
2024. KHC:26312 WP No.22403 of 2022 He had relied on the judgment of the Hon’ble Apex Court in case of Gurudev Singh Vs. Narayan Singh2, “It is well settled that executing court cannot go behind the decree. As the decree did not clothe the decree-holder to pray for execution of the decree by way of removal of the trees, the same could not have been directed by the learned executing court in the name of construing the spirit of the decree under execution”. He had also relied on the judgment of the Hon’ble Apex Court in case of Pradeep Mehra Vs. Harijivan J.
Jethwa and others.3
14. The above judgment is an important judgment in respect of Section 47 as well as Order XXI, CPC as the three Judge Bench decision of this Court not only condemned the abuse of process done in the garb of exercise of powers under Section 47 read with Order XXI, CPC, but also gave certain directions to be followed by all Civil Courts in their exercise of powers in the execution of a decree. It further directed all the High Courts to update and amend their Rules relating to the execution of decrees so that the decrees are executed in a timely manner. As far as Section 47 is concerned, this Court had stated as under:
2. 2007 (14) SCC1733 2023 SCC Online 1395 - 13 - NC:
2024. KHC:26312 WP No.22403 of 2022 “24. In respect of execution of a decree, Section 47 CPC contemplates adjudication of limited nature of issues relating to execution i.e. discharge or satisfaction of the decree and is aligned with the consequential provisions of Order 21 CPC. Section 47 is intended to prevent multiplicity of suits. It simply lays down the procedure and the form whereby the court reaches a decision. For the applicability of the section, two essential requisites have to be kept in mind. Firstly, the question must be the one arising between the parties and secondly, the dispute relates to the execution, discharge or satisfaction of the decree. Thus, the objective of Section 47 is to prevent unwanted litigation and dispose of all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees, executing court must not go beyond the decree. However, there is steady rise of proceedings akin to a retrial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the executing court and the decree-holder is deprived of the fruits of the litigation and the judgment-debtor, in abuse of process of law, is allowed to benefit from the subject-matter which he is otherwise not entitled to.-. 14 - NC:
2024. KHC:26312 WP No.22403 of 2022 26. The general practice prevailing in the subordinate courts is that invariably in all execution applications, the courts first issue show-cause notice asking the judgment-debtor as to why the decree should not be executed as is given under Order 21 Rule 22 for certain class of cases. However, this is often misconstrued as the beginning of a new trial. For example, the judgment-debtor sometimes misuses the provisions of Order 21 Rule 2 and Order 21 Rule 11 to set up an oral plea, which invariably leaves no option with the court but to record oral evidence which may be frivolous. This drags the execution proceedings indefinitely.
6. Relying on these judgments, it is submitted that the decree is not executable and the Court cannot be permitted to go beyond the decree, in the process, the properties which belong to the JDr cannot be demolished and possession cannot be given to the DHr.
7. Learned counsel appearing for the respondent/plaintiff submits that though a decree was granted in his favour on 24.07.2007. Even after 17 years, they are not in a position to enjoy the fruits of the decree. It is submitted that the petitioner and others have been continuously filing the frivolous petitions - 15 - NC:
2024. KHC:26312 WP No.22403 of 2022 and indulging in one litigation after the other and till now the execution could not be completed. It is submitted that in I.A.No.14 when an order is passed appointing the Surveyor, that order was not questioned. Then, I.A.No.15 is filed by the DHR seeking direction to amin to identify the B schedule property that was allowed and even that order was not questioned. Then, another I.A.No.16 is filed for seeking delivery of vacant possession of the B schedule property that was also not questioned and thereafter on I.A.No.5 an order was passed on 05.11.2016. On these applications when an order is passed at that stage after passing of the order in I.A.Nos.20, 21 and 22 a recall application is filed i.e., I.A.No.28 where the impugned order came to be passed, learned counsel submits that the defendant who has not contested the suit who had kept quite even in the execution proceedings also when an order is passed on I.A.Nos.14, 15 and 16 he had chosen not to question, has filed this petition. Learned counsel submits that it is their case that by the proceedings of the Land Reforms Tribunal an extent of 30 cents is granted in favour of different people. The plaintiff is never claiming the land which is granted by the Land Reforms Tribunal in the favour of the defendants.-. 16 - NC:
2024. KHC:26312 WP No.22403 of 2022 In fact, even in the plaint schedule also it is categorically mentioned that excluding the 30 cents of land which is allotted by the Land Reforms Tribunal. The defendants as they have encroached upon the land belonging to the DHr. They have been coming before the Court with these kinds of pleas and trying to frustrate the judgment and decree passed by the Court below. It is submitted that he is a party to the suit and his case is also very clear before the Court that an extent of 30 cents of land is granted in favour of several people by the Land Reforms Tribunal. If the intentions of the defendants are bonafide they would have not interfered with the execution of decree. They would have argued that the land that is allotted to them by the Land Reforms Tribunal and their possession in respect of the said property should not be disturbed, but instead of that the defendant is always on the point that what is the schedule property as per the judgment and decree and the Surveyor’s report and which is going to be executed now is not one and the same and as such he has come with these objections. Learned counsel submits that there are no bonafides on the part of the defendants and they could - 17 - NC:
2024. KHC:26312 WP No.22403 of 2022 successfully drag on the matter from the year 2007 till 2024 and the Writ Petition needs to be dismissed with costs.
8. Having heard the learned counsels on either side and perused the entire material on record. The suit is filed in the year 1999 for recovery of possession and the judgment and decree was passed on 24.07.2007. In A schedule of the property it is clearly mentioned that excluding the land granted by the Land Reforms Tribunal that is 30 cents of land. It is also the case of the defendants that 30 cents of land has been allotted to them by the Land Reforms Tribunal by order in TRI.No.3065/78-79 and there is a sketch annexed to the said proceedings. That property is the property allotted to defendant No.7 and others is also not in dispute and the Court while passing the order on I.A.Nos.14, 15, 16 till 20, 21 and 22 has mentioned about the Surveyor’s report and execution as per TRI.No.3065/78-79 and the sketch appended to that. Once the surveyor is appointed and he has filed a report considering the very same boundaries as per the sketch attached to TRI.No.3065/78-79, the report reveals that 22 cents of land is in encroachment. It makes it very clear that apart from the 30 - 18 - NC:
2024. KHC:26312 WP No.22403 of 2022 cents of land which is in occupation of the defendants and others, another 22 cents of the land which is part of the suit schedule property is encroached by the defendants. It appears that by one way or the other defendant and others wanted to protract these proceedings with a view to retain their possession over the property. Learned counsel for the petitioner submits that they are all the poor farmers, they have built huts in that and they are living in it. As far as their possession is concerned, the Court below has made it clear that as per the sketch appended to the TRI.No.3065/78-79, the surveyor was directed to demarket the land as per the same sketch was prepared. The 30 cents of land which is allotted to them is protected and the defendant cannot have any objections. Now, apart from 30 cents of land even one cent of land is in occupation of the defendants, it has to be taken possession as it belongs to the plaintiff. Just because they have been in the possession of the property, it is not open for them to contend that the boundaries as per the surveyor’s report and the boundaries in the decree are not tallying. Petitioner/defendant/JDr and others can only object, fight, protect with regard to their 30 cents of land which is granted by - 19 - NC:
2024. KHC:26312 WP No.22403 of 2022 the Land Reforms Tribunal. Instead of asking for a clarification on that they are harping on the boundaries which shows the intention of the petitioner/JDr. In the considered opinion of this Court, the order impugned is rightly passed whereby the Court below had rejected the applications filed by the defendants. The manner in which the I.As are filed one after the other by the defendant that is first by defendant No.4 and then by this petitioner clearly shows the intention of the defendants to retain their possession over the suit schedule property. The submission of the learned counsel that the Court cannot go beyond the judgment and decree and relied on certain judgments. The petitioner/JDr is before this Court cannot take such stand.
9. Though he has appeared before the Court and adopted the written statement of defendant No.4 conveniently not contested the matter and after the suit is decreed when defendant No.4’s objections with regard to the suit schedule property was rejected then at that point of time, defendant No.7 has come into the picture. When the property as mentioned in the decree on some reasons cannot be identified - 20 - NC:
2024. KHC:26312 WP No.22403 of 2022 then the Executing Court has its own ways and means to identify the property. The Petitioner himself is coming forward and saying that their property is 30 cents as per the Land Reforms Tribunal and the sketch appended to it and as long as that property is protected, these defendants cannot raise any other issues and these kind of petitions are filed only with an intention to frustrate the decree.
10. Time and again the Hon’ble Apex Court in several cases has observed that a strong message needs to be sent out to the litigants informing that they would have to pay the price for pursuing frivolous litigation and to ensure that others should not venture along with the same path in the hope of judicial leniency. In those cases exemplary costs are inevitable and even necessary. The Hon’ble Court has also observed that the sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. In the case of Pradeep Mehra Vs. Harijivan J.
Jethwa and others.4 Arising out of SLP (C).No.8943 of 2021, the Hon’ble Apex Court has 4 2023 SCC Online 1395 - 21 - NC:
2024. KHC:26312 WP No.22403 of 2022 referred to the observation of the Privy Council as long back as in 1872 that “the difficulties of a litigant in India began when he has obtained a decree”. The Hon’ble Apex Court observed that “we are afraid, is no better even today.
11. This case is a classic example in the light of the observation of the Privy Council. A decree that was granted on 24.07.2007 even after 17 years the decree holder is not able to enjoy the fruits of the decree. The litigant is taking advantage of the procedural law which is enacted for the purpose of advancing the justice and also for giving timely justice to the litigant. The Civil Procedure Code and the Civil Rules of practice, limitation Act prescribes the time limit for doing a particular act but unfortunately nobody is adhering to the time limit. If the litigant is not able to get the relief from the justice delivery system, naturally they will loose hope on the system. This Court is coming across several unfortunate cases of this nature and also even after 20 years after the institution of the suit on some interlocutory applications they come to the High Court. Once the stay is granted it would be pending for eight years, ten years in the High Court. Even when the matter - 22 - NC:
2024. KHC:26312 WP No.22403 of 2022 comes up after ten years also the party who is enjoying the stay is not ready to go ahead with the pending petition before the High Court. It is high time that all the stakeholders shall introspect before the hope of the people completely erodes on the system.
12. In the light of the above discussion, this Court deems it appropriate to pass the following, ORDER
i. Accordingly, the Writ Petition is dismissed with costs of Rs.20,000/- to be payable to the decree holder within four weeks from the date of receipt of copy of the order. ii. Execution proceedings shall be disposed off within a period of four weeks from the date of receipt of copy of the order. iii. All I.As. in the Writ Petition, shall stand closed. SD/- JUDGE BN List No.:
1. Sl No.:
1.